283 F.

2d 946

Robert C. SANDERS, Appellant,

v.
George W. BEACH, United States Marshal for the District of
New Mexico, Appellee.
No. 6496.

United States Court of Appeals Tenth Circuit.

Nov. 21, 1960.

William P. DeMoulin, Denver, Colo., for appellant.

Ruth C. Streeter, Asst. U.S. Atty., Albuquerque, N.M. (James A. Borland,
U.S. Atty., Albuquerque, N.M., was with her on the brief), for appellee.
Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges.
PER CURIAM.

Robert C. Sanders, while serving a sentence at the Federal Correctional

Institution at La Tuna, Texas, brought this replevin action against the United
States Marshal for the District of New Mexico seeking the return to him of
personal property which included clothing and money in excess of $3,000. The
petition is inartfully drawn and in many respects is incomplete, but in essence it
alleges that the Marshal unlawfully took from the plaintiff the described articles
which are now in his possession.

The trial court permitted the petition to be docketed in forma pauperis and
immediately dismissed it without a hearing or service upon the Marshal, on the
grounds that it was 'frivolous and without merit.' It may be that the action is
frivolous and without merit and it is quite likely that the district judge had
personal knowledge of facts which would sustain that conclusion. There is,
however, nothing in the record to that effect and the allegations in the petition
must be taken as true. The order of dismissal is reversed and the case remanded
for further proceedings.